In Department of the Treasury, United States Customs Service, El Paso, Texas, et al., 56 FLRA No. 56 (2000) (Chairman Wasserman concurring), the Authority reviewed exceptions to a Judge's decision on remand from the Authority in Department of the Treasury, United States Customs Service, El Paso, Texas and Department of the Treasury, United States Customs Service, New Orleans, Louisiana, 55 FLRA 43 (1998) (Customs). In Customs, the Authority had remanded the case to the Judge to analyze the record to determine whether the Respondent's assertion that videotaping employee interviews constituted the exercise of management's reserved right under section 7106(a)(1) of the Statute to determine its internal security practices. The Judge found that the Respondent failed to show that videotaping in these circumstances was an exercise of that management right. The Authority disagreed. Applying Authority precedent for determining whether a matter constitutes an internal security practice under section 7106(a)(1) of the Statute, the Authority found that the Respondent, a law enforcement agency, had established a reasonable link between its objective of safeguarding its personnel, property or operations and its investigative technique of videotape recording employees subject to internal affairs investigations. Because the decision to videotape had more than a de minimis effect on employees' conditions of employment, the Respondent was obligated to bargain over the impact and implementation of the decision and its failure to do so violated the Statute.

In U.S. Geological Survey, Caribbean District Office, San Juan, Puerto Rico and American Federation of Government Employees, AFL-CIO, Local 1503, 53 FLRA No. 86, the Authority found that the Respondent committed an unfair labor practice under section 7116(a)(1) and (5) of the Statute, by refusing to bargain over a grievance and arbitration procedure and by engaging in unlawful conduct that precluded the completion of negotiations for a collective bargaining agreement before the expiration of the 1-year period following the Union’s certification.

In Association of Civilian Technicians, Pennsylvania State Council and U.S. Department of Defense, Adjunct General of Pennsylvania, Fort Indiantown Gap, Annville, Pennsylvania, 54 FLRA 552 (1998), the Authority found within the duty to bargain a single proposal that involved the manner in which the Agency would fill vacant positions. The Authority found that the proposal concerned the conditions of employment of unit employees because it proscribed the conditions governing the filling of vacant unit positions. Because the proposal did not regulate the filling of military positions, the Authority found it to be consistent with 10 U.S.C. § 976(e), which would prohibit the Agency from negotiating on behalf of the United States with anyone representing, or purporting to represent, members of the armed forces concerning the conditions of military service. The Authority also found that the proposal did not affect management’s right to select under section 7106(a)(2)(C) of the Statute. In this regard, the Authority determined that the proposal permitted the Agency to determine the method by which it will fill a vacant position and allowed the Agency to solicit applicants from any appropriate source.

In American Federation of Government Employees, Locals 3807 and 3824 and U.S. Department of Energy, Western Area Power Administration, Golden, Colorado,

55 FLRA 1 (1998), the Authority addressed the negotiability of four proposals submitted by the Union in response to an Agency regulation providing that, except in certain circumstances, compensatory time not taken within 26 pay periods would be forfeited. Prior to the regulation, compensatory time not used within 26 pay periods was converted to overtime compensation.. All four proposals were found within the duty to bargain.

Proposal 1 stated that the proposed change was unacceptable to the Union. Proposal 2 stated that the continuing practice of paying overtime for compensatory time not used within 26 pay periods would be acceptable. The Authority found that Proposals 1 and 2 did not conflict with 5 C.F.R § 550.114(d), because that regulation granted the Agency discretion -- i.e., it did not require the Agency -- to fix a time limit for the use of compensatory time. The Authority also found that there was no compelling need for the Agency regulation. In addition, the Authority found that Proposals 1 and 2 did not affect the Agency's right to determine its budget under section 7106(a)(1) of the Statute, because there was no contention that the proposals prescribed particular programs, operations, or amounts to be included in the Agency's budget, and because the Agency did not establish that the proposals would cause a significant and unavoidable increase in costs that was not offset by compensating benefits. As Proposals 1 and 2 were not contrary to law on any of the bases asserted by the Agency, the Authority found Proposals 1 and 2 to be within the duty to bargain.

Proposal 3 allowed employees to choose between compensatory time and overtime pay as compensation for overtime work. The Authority concluded that 5 C.F.R. § 550.114(c) gives the Agency head discretion to provide for compensatory time rather than overtime payment for certain employees, and that the Agency may exercise its discretion through negotiation to allow individual employees to elect overtime rather than compensatory time. As Proposal 3 was not contrary to 5 C.F.R. § 550.114(c), and as the Agency argued no other grounds, the Authority found Proposal 3 to be within the duty to bargain.

Proposal 4 provided that if legislation is enacted permitting the Agency to grant 1.5 hours of compensatory time for every hour of extra work, then the Agency would institute such a policy. Because the proposal would apply only if legislation consistent with the proposal's wording was signed into law, the Authority concluded that Proposal 4 was not contrary to law.

In Social Security Administration, Region VII, Kansas City, Missouri, 55 FLRA No. 95 (1999), the Authority adopted the Judge's findings that the Respondent violated section 7116(a)(1) and (5) of the Statute by failing to provide the Union with advance notice of the Respondent's support for elimination of smoking in the cafeteria of the building in which the Respondent was a tenant, and by refusing to bargain over the elimination of smoking in the cafeteria. The Authority clarified that both a "covered by" defense under U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 47 FLRA 1004 (1993) (SSA, Baltimore), and a defense under Internal Revenue Service, Washington, D.C., 47 FLRA 1091 (1993) (IRS), may, under appropriate circumstances, be raised in the same case, and that the Judge erred by declining to address both defenses in this case. The Authority held that the Judge properly concluded, under IRS, that the parties' agreement did not permit the Respondent's refusal to bargain, because the provision relied on by the respondent only banned smoking in SSA facilities, not other agencies' facilities where SSA was merely a tenant (such as the cafeteria here). Applying SSA, Baltimore, the Authority also found that the matter of smoking in the cafeteria was not "covered by" the parties' agreement. In this connection, the Authority noted the Judge's finding that the parties had previously agreed, in a memorandum of understanding, that any matter not set forth explicitly and comprehensively in an agreement was not foreclosed from further bargaining. Because the parties' national agreement addressed only SSA facilities, the Authority concluded that the agreement did not foreclose bargaining over smoking in non-SSA facilities. Accordingly, the Authority affirmed the Judge's finding that the respondent violated section 7116(a)(1) and (5) of the Statute by failing to bargain over the change in smoking policy.